GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - The U.S. government has for years had secret evidence that could help a young Canadian prisoner defend himself in the Guantanamo war crimes tribunals, a military defense lawyer said on Thursday.
Prosecutors notified prisoner Omar Khadr’s military lawyer two days ago of the existence of “potentially exculpatory evidence” from a U.S. government eyewitness to the battle in Afghanistan that resulted in Khadr’s capture in 2002, Navy Lt. Cmdr. William Kuebler said.
“It’s an eyewitness the government has always known about,” Kuebler told reporters after Khadr was arraigned for the third time on charges of killing a U.S. soldier. “This is something that was buried because nobody ever looked.”
It was unclear when military prosecutors learned about that witness and they declined to speak to reporters at the U.S. naval base in southeastern Cuba.
The evidence is secret and Kuebler would not say which government entity employed the witness.
But he said the evidence could challenge the government’s assertion that Khadr is an “unlawful enemy combatant” subject to trial by the special military tribunals the Bush administration set up to try foreign captives held as suspected terrorists at Guantanamo.
Khadr is the son of an alleged al Qaeda financier and was 15 when he was captured after a firefight at a suspected al Qaeda compound in Afghanistan in 2002. He is accused of throwing grenades that killed U.S. Army Sgt. 1st Class Christopher Speer and wounded other coalition soldiers.
Khadr, now 21, appeared in court with a full, short beard and bushy sideburns. He wore a loose white tunic and pants, a uniform signifying he complies with camp rules. Those who misbehave wear orange.
He is charged with murder, attempted murder, conspiring with al Qaeda, providing material support for terrorism and spying by conducting surveillance of U.S. military convoys in Afghanistan. He faces life in prison if convicted.
The charges were dismissed when the U.S. Supreme Court ruled in 2006 that President George W. Bush lacked authority to create the alternate legal system at Guantanamo.
The charges were refiled after Congress authorized a new tribunal system last year but a military judge, Army Col. Peter Brownback, dismissed them in June.
He said he lacked jurisdiction because Khadr had not been designated as an “unlawful enemy combatant” as the new law required for those tried at Guantanamo. Brownback said the distinction was crucial because international law requires other types of trial for lawful combatants.
A newly convened military appeals court reinstated the charges and ruled that Brownback himself had authority to decide whether Khadr was an “unlawful” combatant.
The prosecutor, Marine Maj. Jeffrey Groharing, said he could prove that designation applied by showing a videotape of Khadr making and planting roadside explosives in Afghanistan. The video was recovered from the compound where Khadr was captured, he said.
Brownback refused to allow it and the issue was postponed to allow time for the defense to examine the new evidence.
Kuebler complained to the judge that an FBI agent and other government witnesses had refused to speak to defense lawyers. He also tried unsuccessfully to show that Brownback could not preside impartially because he was under pressure from the Department of Defense to produce a conviction.
Kuebler asked the judge if he recalled telling lawyers during an October 24 conference call that he had “taken a lot of heat” for dismissing the charges back in June.
Brownback acknowledged he “may have said something like that” and added, “The DOD people, they didn’t like what I wrote.”
He later said no higher-ranking military person had ever mentioned the tribunals to him, but referred to press reports he had read of criticism by Pentagon officials.
Brownback ruled himself fit to try the case impartially.
Prosecutors, who have been preparing the case for years, want to start Khadr’s trial in late January but the defense said it could not be ready by then and that they preferred a fair trial to a speedy one.
Editing by Jackie Frank